Communication Is Key to e-Discovery Success

Given how they say in real estate, 'location, location, location,' the mantra for e-discovery and document reviews should be 'communication, communication, communication.'

The recent lawsuits filed by Sullivan & Cromwell and Electronic Evidence Discovery, Inc. ('EED') against one another brought to the forefront some of the frustrations that law firms and the vendors to which they outsource are currently experiencing. Among the challenges that commonly arise are incomplete data, missed deadlines, incorrectly tagged documents and budget overruns, all of which can wreak havoc on a litigation and sour a vendor's relations with the client. The Sullivan and EED suits ultimately were settled out of court and attributed to 'miscommunications.'

So how do you get legal professionals at law firms, e-discovery and staffing vendors to function harmoniously in order to minimize problems? It's certainly not easy. There are few simple answers, given all the factors involved that can influence the outcome, including judges, lawyers, litigation support professionals, clients, vendors and the multitude of complex technologies involved. A good start is having a simple awareness of this fact ' along with a little dose of humility, which can go a long way toward overcoming the problems we all face on a daily basis.

Understanding the Entire
Litigation Lifecycle

One of the primary causes of miscommunication is poor planning, or a lack of foresight. Understanding the process, including the procedural and financial implications of negotiations and concessions made at the 'meet and confer,' are paramount to saving time, meeting deadlines and coming in within budget. In its suit, Sullivan alleged that EED hindered its staffing arrangements due to problems and resulting delays in processing the data. This brings to light an opportunity, the potential of which both law firms and vendors underestimate, to improve lines of communication when attempting to time the successful collection, processing and staffing of a review.

When dealing with collection, processing and hosting decisions, it is critical to involve people who are experienced in strategizing and staffing document reviews. They should be included in all communications well before anything gets to the review stage. There are several ways in which communicating as a team, early and often, and not segmenting discovery into phases, can prove invaluable to the process and save money. Some great ideas can be generated, especially if all disciplines are brought into the loop before the data is processed. Here are some ideas and scenarios law firm e-discovery and staffing vendors might come up with when working cohesively as teams, as opposed to with an 'Us vs. Them' mentality:

• Require the collection, process, hosting, and staffing people to communicate with one another from the beginning of discovery, and to report often as a group to the law firm/client as to the expected deliverable size and page count, thereby allowing lead time for flexible staffing structures.
• The law firm challenge: 'Our review will require specialists in forensic accounting. Is there a way that we can segregate processing and review so that those specialists can see all the .XLS documents in their native format, enabling them to review formulas?' If minds are working together, they might come up with: 'Yes, we can segment those documents in process, produce all .XLS to native, all other documents to image, and pre-populate folders with the .XLS documents for proper review workflow.'
• Simply stagger the review so that all first-pass review is done in native, with the firm selecting the right documents for production, and TIFFing only those documents out of the review environment. This manages costs, uses the right tools for the job, and enables protection of privilege while controlling production.

Working with and
Choosing the Right Vendor

There are countless vendors pitching why they are so good. While the size, complexity and the unique challenges of the case, along with the budget, should and do influence which vendor is chosen, for the large part, most vendors have the software tools necessary to do the job.

Thus, the challenge is to find vendors that will execute and proactively anticipate problems and minimize communication failures, which are all too common. This comes down to people and process. When selecting an e-discovery vendor, the caliber of the account manager and project management team is crucial. Look for account managers and project management teams that understand the process of discovery and the entire litigation lifecycle. Find out to what extent they are capable of helping you communicate and coordinate with the document and staffing vendors when needed. Make sure they are thinking forward and backward within the litigation lifecycle to minimize miscommunications, avoid mistakes and properly anticipate and hit deadlines.

When searching for the right people, listen to your instincts. Work with sincere people. Find tactical people who can champion your project within their own organization so it gets the attention and project management it needs. Find account managers that you view as consultants who truly provide added value, and are not merely order-takers. Ask what sort of project scoping form, if any, the project management team uses, and ask to see it. Ask them how they communicate throughout the process that the project blueprint is being executed. The ability to organize the right people asking the right questions is crucial, and takes a special person to execute. People, process, and technology ' in that order ' regardless of the company name or title on a business card, result in effective discovery.

Getting the Deal You Bargained For

Vendor pricing can be very complex, and is made even more difficult to understand because there are so many different ways for each vendor to price the same services, which, themselves, are evolving daily. Vendors are often asked to respond to an RFP and/or request for pricing in order to become 'approved,' or 'preferred,' vendors. These attempts by law firms to compare pricing amongst vendors often fall short, and do not provide the true 'apples to apples' comparison intended.

A best practices approach, though often poorly executed, is when a preformatted spreadsheet is e-mailed out to vendors, who are asked to complete it. This is a great strategy that often doesn't quite achieve its intended goal of standardizing vendors' pricing proposals. The reason is simple: The structure of the pricing grid within The spreadsheet can backfire by inadvertently providing each vendor many loopholes and/or failing to account for all of the optional services available. As a result, there is still an 'apples to oranges' comparison because vendors are not always able to standardize various options within the pricing matrix. Yet, these options often come into play once the project is underway, thereby causing budget overruns.

Preformatted spreadsheets are a great idea, but the spreadsheet should first be circulated across many vendors to get their feedback on ways to improve it, then reformatted from all the feedback, and only then distributed for actual use. More often than not, vendors will happily give you invaluable insights on how to ensure that the pricing grid allows for a true 'apples to apples' comparison. Vendors know their competitors' pricing methodologies quite well, and will prove insightful when it comes to tightening any loopholes in the pricing spreadsheet.

Conclusion

Litigation is highly unpredictable, and e-discovery and the document reviews that follow can be quite complex. Finding ways to improve communication between the client, law firm, and e-discovery and staffing vendors is the key to receiving proper deliverables, meeting deadlines and working within agreed budgets. Never underestimate the value of constant effective communication among all parties throughout the litigation lifecycle.

Given how they say in real estate, 'location, location, location,' the mantra for e-discovery and document reviews should be 'communication, communication, communication.'

The recent lawsuits filed by Sullivan & Cromwell and Electronic Evidence Discovery, Inc. ('EED') against one another brought to the forefront some of the frustrations that law firms and the vendors to which they outsource are currently experiencing. Among the challenges that commonly arise are incomplete data, missed deadlines, incorrectly tagged documents and budget overruns, all of which can wreak havoc on a litigation and sour a vendor's relations with the client. The Sullivan and EED suits ultimately were settled out of court and attributed to 'miscommunications.'

So how do you get legal professionals at law firms, e-discovery and staffing vendors to function harmoniously in order to minimize problems? It's certainly not easy. There are few simple answers, given all the factors involved that can influence the outcome, including judges, lawyers, litigation support professionals, clients, vendors and the multitude of complex technologies involved. A good start is having a simple awareness of this fact ' along with a little dose of humility, which can go a long way toward overcoming the problems we all face on a daily basis.

Understanding the Entire
Litigation Lifecycle

One of the primary causes of miscommunication is poor planning, or a lack of foresight. Understanding the process, including the procedural and financial implications of negotiations and concessions made at the 'meet and confer,' are paramount to saving time, meeting deadlines and coming in within budget. In its suit, Sullivan alleged that EED hindered its staffing arrangements due to problems and resulting delays in processing the data. This brings to light an opportunity, the potential of which both law firms and vendors underestimate, to improve lines of communication when attempting to time the successful collection, processing and staffing of a review.

When dealing with collection, processing and hosting decisions, it is critical to involve people who are experienced in strategizing and staffing document reviews. They should be included in all communications well before anything gets to the review stage. There are several ways in which communicating as a team, early and often, and not segmenting discovery into phases, can prove invaluable to the process and save money. Some great ideas can be generated, especially if all disciplines are brought into the loop before the data is processed. Here are some ideas and scenarios law firm e-discovery and staffing vendors might come up with when working cohesively as teams, as opposed to with an 'Us vs. Them' mentality:

• Require the collection, process, hosting, and staffing people to communicate with one another from the beginning of discovery, and to report often as a group to the law firm/client as to the expected deliverable size and page count, thereby allowing lead time for flexible staffing structures.
• The law firm challenge: 'Our review will require specialists in forensic accounting. Is there a way that we can segregate processing and review so that those specialists can see all the .XLS documents in their native format, enabling them to review formulas?' If minds are working together, they might come up with: 'Yes, we can segment those documents in process, produce all .XLS to native, all other documents to image, and pre-populate folders with the .XLS documents for proper review workflow.'
• Simply stagger the review so that all first-pass review is done in native, with the firm selecting the right documents for production, and TIFFing only those documents out of the review environment. This manages costs, uses the right tools for the job, and enables protection of privilege while controlling production.

Working with and
Choosing the Right Vendor

There are countless vendors pitching why they are so good. While the size, complexity and the unique challenges of the case, along with the budget, should and do influence which vendor is chosen, for the large part, most vendors have the software tools necessary to do the job.

Thus, the challenge is to find vendors that will execute and proactively anticipate problems and minimize communication failures, which are all too common. This comes down to people and process. When selecting an e-discovery vendor, the caliber of the account manager and project management team is crucial. Look for account managers and project management teams that understand the process of discovery and the entire litigation lifecycle. Find out to what extent they are capable of helping you communicate and coordinate with the document and staffing vendors when needed. Make sure they are thinking forward and backward within the litigation lifecycle to minimize miscommunications, avoid mistakes and properly anticipate and hit deadlines.

When searching for the right people, listen to your instincts. Work with sincere people. Find tactical people who can champion your project within their own organization so it gets the attention and project management it needs. Find account managers that you view as consultants who truly provide added value, and are not merely order-takers. Ask what sort of project scoping form, if any, the project management team uses, and ask to see it. Ask them how they communicate throughout the process that the project blueprint is being executed. The ability to organize the right people asking the right questions is crucial, and takes a special person to execute. People, process, and technology ' in that order ' regardless of the company name or title on a business card, result in effective discovery.

Getting the Deal You Bargained For

Vendor pricing can be very complex, and is made even more difficult to understand because there are so many different ways for each vendor to price the same services, which, themselves, are evolving daily. Vendors are often asked to respond to an RFP and/or request for pricing in order to become 'approved,' or 'preferred,' vendors. These attempts by law firms to compare pricing amongst vendors often fall short, and do not provide the true 'apples to apples' comparison intended.

A best practices approach, though often poorly executed, is when a preformatted spreadsheet is e-mailed out to vendors, who are asked to complete it. This is a great strategy that often doesn't quite achieve its intended goal of standardizing vendors' pricing proposals. The reason is simple: The structure of the pricing grid within The spreadsheet can backfire by inadvertently providing each vendor many loopholes and/or failing to account for all of the optional services available. As a result, there is still an 'apples to oranges' comparison because vendors are not always able to standardize various options within the pricing matrix. Yet, these options often come into play once the project is underway, thereby causing budget overruns.

Preformatted spreadsheets are a great idea, but the spreadsheet should first be circulated across many vendors to get their feedback on ways to improve it, then reformatted from all the feedback, and only then distributed for actual use. More often than not, vendors will happily give you invaluable insights on how to ensure that the pricing grid allows for a true 'apples to apples' comparison. Vendors know their competitors' pricing methodologies quite well, and will prove insightful when it comes to tightening any loopholes in the pricing spreadsheet.

Conclusion

Litigation is highly unpredictable, and e-discovery and the document reviews that follow can be quite complex. Finding ways to improve communication between the client, law firm, and e-discovery and staffing vendors is the key to receiving proper deliverables, meeting deadlines and working within agreed budgets. Never underestimate the value of constant effective communication among all parties throughout the litigation lifecycle.